Research On The Conviction Amount In China's Criminal Law

The conviction amount is widespread in China's criminal law,because our country has the tradition of conviction amount since ancient times.Besides,the legislation of the People's Republic of China(PRC)was influenced by foreign legislative experience like the former Soviet Union,coupled with the utilitarian considerations of limited judicial resources.All the three together determine the conviction amount has a place in the criminal law.The conviction amount in China's criminal law of particular features not only can affect the choice of legal punishment grade,but also can affect the determination of crime and the choice of accusation.Choosing the conviction amount of criminal law in our country as the research object is to guide the setting pattern of the conviction amount fixed on the macro level,and to adjust the construction of specific standard text on the micro level in order to better solve the problems encountered in judicial practice,by clarifying the concept,function of the conviction amount,the position in the concept and constitution of the crime,as well as the relationship with the basic principles of the criminal law.The conviction amount plays an indispensable role in the determination of crime,the distinction between accusations and the choice of legal punishment grade.Therefore,it is of great significance to study the conviction amount.At the theoretical level,the conviction amount is one of the instances to reveal legal characteristics,one of the important pointers to fully understand the concept of crime,one of the research paths of the theory of crime constitution,one of the keys to grasp the principle of a legally prescribed punishment for a specified crime comprehensively,one of the nodes to improve China's theory of amount and one of the measures to implement and realize the austerity of criminal law spirit.At the practical level,the conviction amount is a basic premise to coordinate sanctions system of two levels,as well as an effective way to consummate standard text in our country,which contributes to solving the problems encountered in the judicial practice,achieving fairness and justice,improving the legal identity,and safeguarding the judicial authority.This dissertation has five chapters,and discusses the conviction amount in detail in more than 150,000 words:Chapter ?,Definition of the Basic Meaning of the Conviction Amount.This part studiesthe concept,characteristics and types of conviction amount.The conviction amount refers to economic value or quantity of a certain number which describing behavior object,behavior consequences and behavior frequency.It is stipulated in the criminal law and affects whether behavior constitutes a crime,which crime behavior constitutes or which legal punishment grade behavior applies.It manifests the degree of social harmfulness of behavior,only changing the legal attribute of behavior without changing the social attribute of behavior.The conviction amount has the characteristics of measurement,objectivity,anaclisis,legality and functionality.It can be divided into different types according to different standards.According to the difference of carrier nature,the conviction amount can be divided into legislative conviction amount and judicial conviction amount.According to the difference of amount performance,the conviction amount can be divided into summary conviction amount and explicit conviction amount.According to the difference of conviction function,the conviction amount can be divided into basic conviction amount and derived conviction amount.According to the difference of existence state,the conviction amount can be divided into normative conviction amount and factual conviction amount.According to the difference of application scope,the conviction amount can be divided into national conviction amount and regional conviction amount.According to different units of measurement used in the identification,the conviction amount can be divided into monetary conviction amount,quantitative conviction amount,gravimetric conviction amount,volumetric conviction amount and frequency conviction amount.Chapter ?,Expansion of the Theoretical Foundation of the Conviction Amount.This part focuses on the relationship between the legal characteristics,the concept of crime and the conviction amount,the position of the conviction amount in the constitution of crime,and the relationship between the conviction amount and the principle of a legally prescribed punishment for a specified crime.The nationality of law determines the uniqueness of the initial setting pattern of conviction amount in China's criminal law,and the globalization of law provides the impetus for the subsequent reform of the conviction amount in China's criminal law.The concept of crime is a multi-dimensional and multi-level concept system.The "substantial plus formal" and "qualitative plus quantitative" concepts of crime are taken in PRC,so the conviction amount can find their own place in these concept systems.In the substantial concept of crime,the conviction amount is the factor describing the scale of social harmfulness.In the formal concept of crime,the conviction amount is included by criminalirregularity.In the "qualitative plus quantitative" concept of crime,the conviction amount is an important form of quantity.In the crime constitution of plane coupling consisting of four elements in PRC,the conviction amount is a selective factor describing the scale of social harmfulness and is attached to behavior belonging to the object element.The conviction amount is closely related to the substantive aspect of the principle of a legally prescribed punishment for a specified crime.It is not only compatible with the principle of clarity of the penal code,but also in accordance with the principle of forbidding the punishment for behavior which should not be punished.Chapter ?,Examination of the Realistic Image of the Conviction Amount.This part focuses on the problems that the conviction amount is exposed in legislation and justice.In terms of Criminal Law,Article 13 in general part is the legislation foundation of conviction amount.80 articles requiring the conviction amount are stipulated explicitly in the specific part.Most accusations appear in the third chapter,namely the crime of disrupting the order of the socialist market economy.The grades of the conviction amount in the same accusation are arranged clear.The summary conviction amounts are much more than explicit conviction amounts.Besides,the conviction amount can coexist with other non-amount quantitative factors.Legislation cannot be flawless,so regulations on the conviction amount also exist problems.There are inconsistent setup modes of legislative conviction amount on the macro level and discordant allocation standards of legislative conviction amount on the micro level.The latter includes the conviction amounts' legislative modes of congeneric accusations are not unified,the conviction amounts of mutual accusations are inconsistent,as well as the same general terms are arranged chaotically.In terms of judicial interpretation,the categories are various.They can not only be formulated separately by one of judiciary authorities such as Supreme People's Court or Supreme People's Procuratorate,but also can be formulated jointly by judiciary authorities or by judiciary authorities and other departments.The conviction amount in judicial interpretation has the characteristics of abundant species,conviction amount and non-amount quantitative coexisting,explicit conviction amount and miscellaneous provisions coexisting and so on.Apart from refining the specific numerical value,the judicial interpretation also provides three methods of calculating the conviction amount,namely summation,conversion and estimation.Although the regulations are detailed,there are still a lot of imperfections,such as the impropriety of judicial interpretation,the inconsistent standards of the conviction amount between natural persons and units,thedifferent values of the same summary conviction amount after judicial interpretation,the inconsistent scope limitation of cumulative method,the unclear property of special attempted crime stipulations,the lack of application rules among standards of the conviction amount and so on.Chapter ?,Choice of the Criminal Law Standpoints of the Conviction Amount.This part is about whether the conviction amount should be reserved and what criminal law standpoints should be taken.The conviction amount makes legislation and judicature mire down in mud of amount centralism so easily that much confusion in theory is caused.Besides,extraterritorial legislation provides a lot of practical experience without conviction amount,and evaluated objects of criminal law have transformed from a mere behavior to behavior and doer.Therefore,the appeal to abolishing the conviction amount appears.However,the appearance of conviction amount is the inevitable result of the interaction between legislation and judicature,and the historical inheritance of the country's ancient legislation.In addition,the conviction amount is a path to the austerity spirit of criminal law,and is coordinated with the two-level sanction system in our country.There are disproofs of the conviction amount in the extraterritorial legislation.Besides,the conviction amount itself also has unique merits.Hence,the provisions of the conviction amount should be reserved in China's criminal law.When scientifically constructing the conviction amount,three standpoints must be insisted,namely rational restraint,system coordination and object protection.Chapter ?,Construction of the Improvement Approach of the Conviction Amount.This part focuses on the macro patterns setting and the micro standards coordination of conviction amount.In terms of the macro patterns setting,Criminal Law should adhere to the setup pattern of “general conviction amount?non-amount quantitative factor”,and judicial interpretation should stick to the setup pattern of “relatively explicit conviction amount plus miscellaneous provisions”.In terms of the micro standards coordination,Criminal Law should take the unified legislation mode of the conviction amount in the congeneric accusations,coordinate the conviction amount of mutual accusations and solidify the collocation of the general terms and.The judicial interpretation should enhance the fitness of the interpretation content,the interpretation subject and the interpretation validity,as well as unifying the conviction amount standards of natural persons and units,coordinating the materialization standard of the different values among the same summary conviction amounts,clarifying the property and application rule of special attempted crime stipulations,unifyingthe time scope and object scope of cumulative rules,confirming the application rules among standards of the conviction amount and so on.The particularity of the conviction amount in China's criminal law determines the sustainability of the research.There are many other problems worth exploring.On the basis of existing research results,it is should be the key of the follow-up study that the conviction amount is studied as part of the quantitative element.The follow-up study will be from point to surface,from small to large,from part to whole.